Tuesday, November 6 will go down in history as one of those black days of Spanish judicial history. While 28 magistrates of the Administrative Chamber-litigation, the Third Section, resolved to decide who – if the clients or the banks – should take the payment of the documented legal documents of mortgages, a superb blow came from Strasbourg: Arnaldo Ortegi and four other leaders of the Basque aberzales did not have a fair trial in the Audiencia Nacional for the Bateragune case in 2010. The Strasbourg judges unanimously pronounced the lack of impartiality of Judge Angela Murillo, president of the court.
During the afternoon of the aforementioned Tuesday, the Third Section divided two halves – 15 votes in favor of customers continue, as until now, paying the legal fees of mortgages, against 13 supporters to apply the new doctrine according to which the banks should be, after a debate limited by the president of the Chamber, Luis Díez-Picazo. Ten magistrates, according to published Ara (https://www.ara.cat/es/ tribunal-supremo-mortgages-piezo-banks-tax-21_ 2120788143.html) have raised their hands to ask the floor, but Díez-Picazo has considered that the debate would be lengthened and urged to vote. The magistrate José Manuel Sieira, former president of the Third Section, commented: "You are stealing the debate". Díez-Picazo did not back down: "I'm the president, I drive the debate, to vote."
In the genesis of the behavior of the Third Section we must put the leadership style of Carlos Lesmes, president of the Supreme Court and General Council of the judiciary (CGPJ, from December 2013, whose mandate expires December 4. authoritarian who took him on 18 and 19 October – after learning that the second section of the House has ruled over three judgments, according to which the above-mentioned mortgage deeds should be taken by the banks, the main ones interested in granting mortgages – to interfere and suggest President Díez-Picazo expressed the need to issue a statement on the matter, although Díez-Picazo finally resisted, highlighting in a footnote "the enormous economic and social repercussions" of the resolutions, the actions of the banks that had fallen on the stock market. the announcement made Friday 19 and despite Lesmes promised that the sentences could not be canceled, when one plenary session of the Chamber was convened for November 5, the suspicions about change were an open secret. President Pedro Sanchez has warned that the Third Section and its crisis have put the ball in the penalty line because the government will amend the law so that from now on the banks will assume legal fees. And on Thursday 8th, the council of ministers fired at the ball, decreeing that these legal acts could no longer be deducted from the financial entities as an expense in the liquidation of the corporation tax.
It seemed that this would be, at the moment, the last episode of the crisis in the judicial system but, as happens with the present in the fashion series produced by Netflix and other companies, even the justice of Spain is a stimulating source for production , with extraordinary speed, new chapters.
Last Monday, November 5, when the deliberation of 28 magistrates of the Third Section began, after the shameless intervention fifteen days before the President of the Supreme Court and the General Council of Magistracy (CGPJ), Carlos Lesmes, began to develop a new chapter.
The former Justice Minister of the government of Mariano Rajoy, Rafael Catalá, proposed, on behalf of the President of the Popular Party, Pablo Casado, "an alternative consensus" to the Minister of Justice, Dolores Delgado: the appointment of the current president of the Second Chamber of the Supreme Court, Manuel Marchena, for the office of president of the Supreme Court and of the CGPJ.
That the proposal was made between the two negotiators of the renewal of the CGPJ, when it is normal that the presidency is the result of a pact between the leaders of the PSOE and the PP, ie Sánchez and Casado, it seemed strange.
In September 2008, for example, José Luis Rodríguez Zapatero announced that he was proposing Carlos Dívar to preside over the Supreme Court and the CGPJ, after receiving Rajoy in La Moncloa, a decision that was widely criticized for having made an election. which, formally, vowels. They are the ones who take possession of the president who elect in their first act as advisors.
The exchange between Delgado and Catalá assumed a clear risk: the filtering of the name of Marchena three weeks after the appointment of the successor of Lesmes.
And the risk materialized last Friday, November 9, when the newspaper El País revealed that the PP proposed to Marchena and that the PSOE rejected the initiative.
The idea of appointing Marchena, who according to the judicial sources consulted by the ARA, knew that the person concerned had been formulated by Catalá in Delgado at the most extreme point of the crisis of justice – the debate of a Third Section – but it was coming to be matured a long time ago in the general staff of Pablo Casado.
Marchena had been a rival of Lesmes in the struggle for the presidency of the Supreme and the CGPJ in 2013, but then was only a judge of the Second Chamber, the criminal chamber of the Supreme Court. All in all, it was not the only opportunity. Five years later, that is, in December 2018, it could be his when the term of Lesmes expired. In September 2014, Marchena increased her power with the help of Lesmes and the support of the conservative sector of CGPJ, president of the Second Chamber.
However, in October 2017, the criminal complaint presented by the State Attorney General, José Manuel Maza, for the crimes of rebellion, embezzlement and disobedience, against the Catalan independenceist leaders, seemed to frustrate the plan for which Marchena had prepared that is, to be the future president of the Supreme Court and the CGPJ. Because as president of the second section he chaired the admissions chamber and was an orator of the order that admitted him. And, in turn, he would be president and speaker of the court.
Precisely, on October 25 – 18 days ago – Marchena signed two cars: confirmation of the conclusion of the instruction of Judge Pablo Llarena, dismissed 296 proceedings before the trial by the defendants of the defendants 18 and decreed the opening of the oral process.
In these circumstances, appointing Marchena as president of the Supreme and of the CGPJ would have, in theory, two further changes: appoint the president of the Second Chamber from the new CGPJ to replace Marchena and appoint a new president and rapporteur of the trial judgment to appoint a new judge to replace it. The presidency and the presentation fall on the senior magistrate of the seven-member court, already appointed in the order for the opening of an oral trial.
This is Andrés Martínez Arrieta, who, along with other members of the court, was challenged by the defenses, an incident that was rejected by the 61th Hall of the Supreme Court, presided over by Lesmes, at the beginning of last September. Judge Susana Polo could, in turn, cover the vacant post that would appear in court. In that case, Martinez Arrieta should take time to study the case in more detail.
The deadlines are very tight. Because at the beginning of December, when it would be consumed, theoretically, this bobbin lace is programmed to hold sessions in which the tribes of the proces will address, with the defense of the defendants, the so-called previous ruling articles – the declination of jurisdiction or question of jurisdiction of the Supreme on the cause of the proces, among others, provided after the bridge of the Constitution.
The PSOE has already accepted in 2013 the appointment of Lesmes as president of the Supreme and CGPJ, but the difference is that then governed the PP. Rubalcaba focused his opposition on Marchena and considered Lesmes as a lesser evil.
Now the PSOE governs and, it has been said, prefers the appointment of a woman to cover that presidency, by Vice President Carmen Calvo's candidate – the Catalan Lourdes Arastey, a member of the Social Chamber, the fourth, of the Supreme Court – Pilar Teso – from the Third Section of the Supreme Court, rival of Lesmes in 2013 -, through the Catalan Encarna Roca, vice-president of the Constitutional Court, and by Ana Ferrer, the first woman to break the unanimity of men in the Second Chamber, whose candidacy is defended by the Minister Delgado.
The question is: Pedro Sanchez is ready to embark on one of those operations that are to his liking, namely to support a candidate who promotes the PP-Marena- to send the message to the independent that the magistrate who supported and has confirmed that Llarena's education will not be the president and president of the sentence that should be issued by the month of July if the trial starts at the end of next January?
Sanchez has already appointed a magistrate who has climbed places with the support of the PP, the current Minister of the Interior, Fernando Grande-Marlaska, in a trick for "one of them" – that is the PP or next to the party For many years, I gave my face to the measures – the approach of prisoners in Euskadi and Catalonia, among others – as a shield for government protection.
However, a hypothetical nomination of Marchena would imply an interference of the two major parties – PSE and PP – in the process of the process by none other than through the change of the president and the speaker, who, in turn, can throw a & # 39; shadow, retrospectively, on actions during the educational process. All this, of course, with subsequent consequences, in the claims before the European Court of Human Rights (ECHR) of Strasbourg.
"Marchena's theoretical appointment as a fireman of the crisis of justice, moving him from the presidency and presentation of the process of proces can be presented as a judge who supported all measures of Llarena and who is seen with the stake ready for the trial and the oral sentence, so no doubt again the process is at the center of the current crisis and the proposals to address it, "said ARA a prosecutor who prefers to keep his name in reserve.
"It is the judgment of the proces, stupid, we could say", says another ex-judge of this newspaper. "It is this process that drives the main maneuvers, both by the government and by the magistrates involved".
The spectacle of Spanish justice is the ray that does not stop even if differently from the collection of poems by Miguel Hernández, power struggles play a leading role, the aspirations – pure and hard – of power.
Yesterday, according to sources close to the negotiations, Catalá again contacted Minister Delgado to bring the positions closer together, given the need to present, by tomorrow, the lists of the members who will be appointed as jurists for the new CGPJ. It is presumed that the magistrate of the national court José Ricardo de Prada, vetoed by Lesmes and the Supreme Court to go to the chapter of judges, will be nominated by prestigious jurists.